Biden’s marijuana clemency grants are a small present in a big box

An old gag that may have played out recently at a home near you is to put a big box under the Christmas tree, with a small present inside. Sometimes, it is a box in a box in a box; other times reams of craft paper hide the read present. It’s a real gift, of course, a showing of love or respect, but perhaps not what it seemed and below expectations.

Most of President Biden’s Dec. 22 grants of clemency were a small gift in a big box. His claim to “have exercised my clemency power more than any recent predecessor has at this point in their presidency” is pure hyperbole, but underneath might be the seed of a truly significant movement towards more meaningful uses of federal clemency.

President Biden’s clemency grants covered two categories. The first was in the big box. It was his extension of an earlier categorical pardon that covers people convicted of simple possession or use of marijuana, or “attempted simple possession of marijuana,” including those convicted in the District of Columbia and on federal lands.

Biden’s original announcement of this categorical pardon last year came with great fanfare. It got lots of favorable press. But underneath all the gift wrapping and tissue paper, there is not much there. Not a single person was released from prison as a result of Biden’s proclamation. 

There is a popular conception that many people are moldering away in federal prisons for simply having some marijuana. This just isn’t true and hasn’t been for decades. 

Marijuana possession has long been punishable as a non-criminal civil offense — a ticket — under 21 U.S.C. §841a, and simple possession of any outlawed drug is a misdemeanor under federal law (at least for a first offense). While some states have had much more severe regimes, Biden’s categorical pardon does not (and could not) reach anyone who was convicted under state law.

In truth, many people who end up with a marijuana possession conviction in federal court received that sentence in a plea deal that swapped out a more serious charge, such as illegal gun possession, because straight marijuana possession cases that fall under overlapping state jurisdiction (as almost all of them do) will be sent to state authorities. 

Federal agencies like the FBI, the Secret Service or the Drug Enforcement Agency simply don’t bring in simple marijuana possession cases, and they shouldn’t. When people are caught by other federal authorities with a small amount of pot (for example, at an airport), they are often handed a civil ticket rather than prosecuted.

Biden’s order also has not done much to clear the records of people who already served their sentences for marijuana possession. The Sentencing Commission estimates that there are more than 6,500 people covered under Biden’s order, but only 110 people have applied for and received a certificate of pardon.

It is the second category of grants from Dec. 22 that holds the promise of significant clemency relief. President Biden commuted the sentences of 11 people who were serving extraordinarily long sentences for nonviolent drug distribution offenses. Four of the people were serving life sentences and all but one of the others were serving sentences of 20 years or more.

Eleven grants from a backlog of more than 16,000 clemency petitions waiting for action is hardly grounds for applause. But sometimes big things come in small packages. 

These are exactly the kinds of cases that President Biden should be focused on. They might not get the press of the big marijuana proclamation, but these are the cases where clemency really matters. Unjust sentences that should have never been issued will be corrected as a result of those 11 grants. Eleven human beings will be released from prison.

That is a real gift, and it is precisely what the pardon power should be focused on. Only time will tell whether this is the start of a real fulfillment of the president’s constitutional duty, or if President Biden thinks these small gestures are sufficient. 

In the end, mercy shouldn’t just be a December thing.

Rachel E. Barkow is a professor at NYU School of Law and served as a member of the United States Sentencing Commission from 2013 to January 2019. Mark Osler is a professor at St. Thomas University School of Law in Minneapolis.